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Thursday, October 23, 2014

A legal opinion by a municipal attorney is advisory

A legal opinion by a municipal attorney is advisory
Comptroller of the City of New York v Department of Fin. of the City of New York, 2014 NY Slip Op 24309, Supreme Court, New York County

In this special proceeding, the Comptroller of the City of New York [the Comptroller] asked Supreme Court to compel the City’s Department of Finance (DOF) to honor a subpoena served on it by the Comptroller. DOF responded by asking the court to quash the subpoena.

The Comptroller had served DOF with a subpoena seeking documents and testimony in connection with an audit that was being conducted by his office. The subpoena was accompanied by a proposed confidentiality agreement.

DOF told the Comptroller that it would not comply with the subpoena, citing an opinion of the City’s Corporation Counsel, Opinion 10-91, in which the then Corporation Counsel concluded that "the [State’s] tax secrecy laws prevent [the DOF] from producing the subpoenaed documents [involving tax information] and giving testimony with respect thereto."

The Corporation Counsel had opined in Opinion 10-91 that the City Charter, as a local law, could not satisfy the "as otherwise provided by law" exception to tax secrecy, reasoning that the relevant sections of State Law must be construed as a controlling state law and so a local law such as the City Charter could not be a "law" within the meaning of the phrase "as otherwise provided by law."

The court noted that §93(a) of the City Charter authorizes the Comptroller to advise the Mayor and City Council "on the financial condition of the [C]ity or any phase thereof and make such recommendations, comments and criticisms in regard to the operations, fiscal policies and financial transactions of the [C]ity as he or she may deem advisable in the public interest." Also, §93(c) of the Charter, in pertinent part, provides that: the Comptroller “shall be entitled to obtain access to agency records required by law to be kept confidential, other than records which are protected by the privileges for attorney-client communications, attorney work products, or material prepared for litigation, upon a representation by the comptroller that necessary and appropriate steps will be taken to protect the confidentiality of such records.”*

The court granted the Comptroller’s petition, denying DOF’s counterclaim, explaining that while DOF relies on Opinion 10-91 in asserting that it cannot turn over such returns to the Comptroller, that opinion has no precedential value.

Citing Slevin v Siegel, 65 Misc 2d 3, the court said that "[A] legal opinion by a municipal attorney is purely advisory and, right or wrong, it is the opinion of the issuing attorney."** Further, said the court, “To hold the Comptroller ‘bound by all opinions of the Corporation Counsel would . . . be unwise as a matter of public policy [and] would elevate the Corporation Counsel … to a position of supremacy among   officials,’" citing Matter of City of New York (Beame), a New York Supreme Court decision reported in the New York Law Journal dated December 3, 1970.

In support of its ruling, Supreme Court noted the decision handed down in “McCall v Barrios-Paoli, 93 NY2d 99 (1999), a case cited by the Comptroller as supporting the Comptroller's position that he should be permitted to obtain the tax information requested.” The court noted that, as dicta,*** in McCall the Court of Appeals commented "the City concedes that the State Comptroller is authorized to conduct financial audits of City agencies - - a duty similarly assigned by the City Charter to the City Comptroller."

* In addition to the ability to audit city agencies pursuant to §93(c), the Comptroller has the "power to audit and investigate all matters relating to or affecting the finances of the [C]ity, including without limitation the … receipt and expenditure of [C]ity funds . . . and to take the testimony under oath of such persons as the comptroller may deem necessary." [see New York City Charter § 93(b)]. The power to take testimony pursuant to §93(b) includes the power to subpoena documents. [see New York World's Fair 1964-1965 Corp. v Beame, 22 AD2d 611].  

** Similarly, in Matter of Nelson v New York State Civ. Serv. Commn., 46 A.D.2d 132, affd. 63 N.Y.2d 802, the Appellate Division said “In reaching this conclusion, we are not unmindful that an opinion of the Attorney-General is usually accorded great deference but we are not bound by an erroneous interpretation of law.”

*** The term “dicta” is used to describe that part of a judicial opinion that is a comment by the court that does not directly address the specifics of the case being decided but may prove helpful to the reader.

The decision is posted on the Internet at:

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